Wilkins v. Van Winkle & Co.

Bleckley, Chief Justice. Van Winkle & Co. entered into a contract with Wilkins and others to construct the machinery for a cotton-seed oil mill of a given capacity, and to have it finished by a specified time. They constructed the machinery, but did not complete it within the time stipulated. It was received and operated, but failed for a short period to work up to the agreed capacity. Wilkins and his associates claimed damages for this failure, both in respect to the delay, and in respect to the deficient capacity. The parties entered into a written submission, by which they referred the question of damages to arbitrators, one chosen by each of the parties,, and an umpire selected by the arbitrators named; indeed, it was a statutory submission. The arbitrators acted and made an award. The award was filed and recorded, under the statute, and Van Winkle & Co. filed numerous — 565 — exceptions to it, at the same time filing a brief of the evidence. Wilkins and his associates moved to dismiss all these exceptions. The court overruled the motion, and entertained some of them. Before anything more was done, Wilkins and his associates made the point that the brief of evidence was not correct, and they filed a brief which they alleged was correct. The two briefs being before the court, an issue was made up between the parties, in which it was alleged on one side that the first brief was correct, and on the other side that it was incorrect, and that the competing brief was correct. The jury tried this issue, and found that the brief of Yan Winkle & Co. was not correct. After this finding, the other party renewed the motion to dismiss the exceptions, on the theory that it was the duty of the excepting party to file a correct brief, and as their brief had been found to be incorrect, they had no right to have any exceptions entertained. The court overruled this motion; and subsequently a trial took place upon certain exceptions which the court had not stricken. On that trial, evidence was heard. Wilkins himself was examined as a witness; and the jury found against the exceptions, all of them. Still later, the court adjudicated upon certain other exceptions that had neither been stricken nor submitted to the jury, and upon these the award was set aside. Wilkins and his associates brought their writ of error to the judgment setting aside the award, alleging error in that judgment, and also in failing to sustain their motion to dismiss all the exceptions originally, and again in failing to sustain the motion to dismiss the exceptions, after the jury had found that the brief of evidence was not correct. Van Winkle & Co. filed a cross-bill of exceptions, in which they set up various errors in the progress of the proceedings, and amongst them, the failure of the court to give a certain charge requested upon the trial of the exceptions which were tried before the jury. Both bills of exceptions are before us and the general question is, — 566 — whether the final judgment setting aside the award ought to be affirmed or reversed. To reach that question, we have first to rule upon the action of the court in refusing to dismiss the exceptions, and that involves a determination of the question whether there was any sufficient brief of evidence before the court. 1. The brief of evidence filed with exceptions to an award being found by the jury to be incorrect, another brief, filed by the opposite party and admitted by him to be correct, will stand in lieu of the former for all purposes. It was admitted by Wilkins and his associates that the brief of evidence which they filed was correct, and it was simply a competition between the two briefs, and when the other brief was found to be incorrect, of course it was a legal inference that Wilkins’s brief was correct, and as he voluntarily put in that brief and alleged it to be correct, the court had a right to accept it and act upon it as a correct brief; it took the place of the other and should be considered as the evidence in the case for all purposes. 2. With regard to dismissing the exceptions, on the original motion or on the subsequent motion, we hold that there was no error in declining to dismiss all of them because some of them were good, and it turns out in the disposition we make of the case that it is unnecessary to discriminate those which were good from those which were not. If necessary, we could go into that, but it would involve quite a lengthy investigation, and we find it possible to dispense with it without any injustice to either of the parties. Some of the exceptions being prima facie good and well pleaded, the court did not err in refusing to dismiss them all. On the main question, whether the judgment setting aside the award ought to be upheld, we call attention to these facts: This was a statutory submission, and it appears on the face of the proceedings that the arbitrators failed to take the oath prescribed by the statute, that oath being as follows: ‘‘Before the arbitrators enter upon a hear — 567 — ing of said cause to make up their award, they shall be sworn impartially to determine the matters submitted to them according to law and the justice and equity of the case, without favor or affection to either party.” Code, §42.32. They did not take that oath, but in lieu of it they took this: “We swear that we will well and truly and faithfully discharge our duties as arbitrators in this submission and a true award render.” Doubtless the statute, in prescribing the oath, meant to call the attention of the arbitrators to their obligations, not only to commit them to the performance of their duties, but to instruct them as to what their duties are; and among these are the important matters of impartially determining according to law and the justice and equity of the case, without favor or affection to either party. This oath seeks to secure the parties against any partiality in the arbitrators, against their departing from the law, and against their losing sight of the justice or equity of the case. And we can see no reason why the arbitrators did not take this oath. In being sworn, the arbitrators either knew the law or they did not. If they knew the law, they ought to have observed it; if they did not know it, they set out in the very inception of their service by committing a gross mistake of law-If they were mistaken in the oath they ought to take, we know not how much mistake of law they may have committed. They set out in their first act with the commission of such a gross mistake, that it is very likely their opinion about law was wrong all through. It is said that this was waived by going on with the reference, but it does not appear that any attention was called to it; it does not appear that there was any knowledge that an improper oath had been taken; at all events, there was no express waiver; and although a waiver may be implied in some cases, and perhaps ought to be implied in many cases, we think, under the circumstances of this case, no such implication ought to hold. It appears from the evidence, the evidence of Mr. Wil — 568 — kins himself, that he had improper intercourse with the arbitrators after the case was closed and after Mr. Van Winkle, the other party, had gone away; he had this intercourse without the knowledge and out of the presence of the other party. One of his acts was to put before the arbitrators a newspaper which contained some quotations of prices, a subject upon which a part of the controversy turned. He disclaims all improper intention in doing this, and says in his testimony that he considered the newspaper against him; but the newspaper was not in the record; it was not produced, and we only know from his statement what it contained. We cannot understand why he should have put the newspaper before the arbitrators. He says it was at the request of Van Winkle’s arbitrator; but we wholly fail to realize that an arbitrator belongs more to one party than the other, especially when they are deliberating upon the case. It is a misconception of the relation of arbitrators to consider one of them as being the arbitrator of one party and the other the arbitrator of the other party. Courts have often held that a feeling of partisanship among arbitrators is incompatible with the impartial state of mind in which they ought to enter upon and discharge their duties. He had no more right to furnish quotations to the arbitrator chosen by Van Winkle than to the one chosen by himself, and besides his own evidence indicates that he really handed the paper to the one he chose himself. He admits that the latter was the one who came to him and asked him for the paper. It went in. What use was made of it is not known. Moreover, it appears from his own evidence that before his arbitrator entered upon his duties, he had a conversation with him, in which he instructed him how to make up the award. Anticipating, he says, that there would be an award in his favor, he instructed them how to shape it, etc. It appearing to this court from the record that the arbitrators were not sworn as the statute prescribes, but took a different oath, and also that the prevailing party had improper intercourse with — 569 — tbe arbitrators and placed in tbeir hands a paper, after the evidence was closed and the arbitrators had secluded themselves for deliberation, and whilst the other party was absent, and these matters being among the exceptions taken to the award, a judgment of the superior court setting aside the award will not be disturbed, though that judgment was based on other exceptions which, in and by themselves, may not have been sufficient to warrant the court in setting the award aside. The -court may have put its final judgment on the wrong ground, but the judgment was correct. Judgment on the writ of error affirmed, and the cross-bill of exceptions dismissed.